GAURI SHANKAR SHARMA Vs. THAKUR MEWA RAM

JUDGEMENT

(1.) This is an appeal by defendants 2 to 6, sons and a grandson of Peshi Ram, from the decree of the learned District Judge of Agra upholding a decree of the Subordinate Judge of that district in a suit brought by Thakur Mewa Ram, the plaintiff-respondent, for recovery of Rs. 2,450, being one-third of the amount due under a mortgage deed, dated 8 August 1913, executed by the aforesaid Peshi Ram and his two brothers, Mitthu Lal and Shambhu Nath. The deed in suit was executed by the three brothers for Rs. 7,500 of which Rs. 1,500 left for payment to certain prior mortgages was admittedly not paid by the mortgagees. The deed must therefore be assumed to be for a consideration of Rs. 6,000. The plaintiff gives credit for a payment of Rs. 3,237 made towards part satisfaction of the deed by the mortgagors. Mitthu Lal and Shambhu Nath have executed other deeds in favour of the plaintiff in respect of two-thirds of the amount due under the mortgage deed in suit. The remaining one-third of what remained due under it is claimed by the plaintiff-respondent against the sons and grandson of Peshi Ram, who died shortly after the institution of the suit.

(2.) It was pleaded in defence that Peshi Ram and defendants 2 to 6 were members of a joint Hindu family to which the hypothecated property belonged, that there was no legal necessity for the loan alleged to have been contracted by Peshi Ram and that the family property was not liable to be sold in enforcement of the mortgage deed in suit. The contesting defendants went further and denied the passing of any consideration under the deed. Two issues were set down for trial by the Court of first instance, viz., whether the deed in suit was for consideration and the mortgaged property was ancestral and, if so, whether Peshi Ram justified in hypothecating the same. It has been found by both the Courts below that the deed in suit was for consideration, and this finding has not been challenged before us. Both the Courts below have likewise found that Peshi Ram had, under the circumstances in which the loan was contracted, authority to contract it so far as to bind the joint family property belonging to himself and the contesting defendants. As will presently appear, the grounds on which the two lower Courts have proceeded are somewhat different. Both of them have however concurred in decreeing the plaintiff's claim in full. Hence the present appeal.

(3.) The principal question raised by the pleadings was whether there was legal necessity for the loan evidenced by the mortgage deed in suit and whether in any case, the plaintiff mortgagee was satisfied, on representations being made to him and after due inquiry, that there was legal necessity for the loan, though none in fact existed. It cannot be disputed that, if either of the two questions involved in the issue stated above is answered in the affirmative, the plaintiff respondent's suit must succeed. ? The judgment of the learned District Judge appears to proceed on the finding that there was in fact legal necessity for the entire sum of Rs. 6,000, advanced under the deed. Prima facie the finding of the learned Judge would have been conclusive in second appeal, were it not for the reason that a now case has been made out thereby which is not warranted by the pleadings and which took the defendants-appellants by surprise. We proceed to explain our view by carefully analyzing the findings of the learned District Judge in the light of the pleadings in the case.